Judge Seeks Young Girls on Film

A judge in Florida wants footage to be turned over to the court so he can decide on a motion to dismiss a civil suit against "Girls Gone Wild" founder Joe Francis. He has also subpoenaed four pounds of buttered popcorn from Gateway Cinemas.

U.S. District Judge Richard Smoak on Wednesday ordered all relevant videos be handed to him so he can make a final ruling on the motion by Francis' lawyers. Smoak said the motion relies on the plaintiff's actions in the videos.

Four women filed suit last year. They said they were 13 to 17 years old when they were filmed in stages of undress or engaged in sexual activity by Francis' company, which produces the "Girls Gone Wild" video series. The plaintiffs are now adults.

Francis' motion argues the actions on film did not violate Florida law. Trial is scheduled for February. I am going to have to find out which attorneys got this case and how they explained to their wives what kind of research they had to do, assuming of course, counsel are of the male gender. What if it was a gay guy? That could be very frustrating.

Middle Finger Conviction Vacated AND Client Wins False Arrest Suit to Boot!

24 hours after blogging about a case where a Public Defender challenged a prosecution based on his client’s use of a four letter word, I have stumbled upon yet another 'middle finger episode,' which has led to a vacated verdict, a false arrest suit, and a judgment for the accused.

On April 10, 2006, David Hackbart was attempting to parallel park his car on a street in Pittsburgh when a car pulled up behind him, blocking his path. Hackbart responded by giving the driver behind him "the middle finger," and promptly heard another voice outside his car tell him, “Don’t flip him off.”

Hackbart, of course, then gave the finger to the interloper who he would soon learn was Sgt. Brian Elledge of the Pittsburgh Police Department, seated in his patrol car at the time. Law Man then issued Hackbart a citation charging him with violating Pennsylvania’s disorderly conduct statute based on Hackbart's giving the middle finger to Sgt. Elledge and the other driver.

Hackbart challenged the citation but at his preliminary hearing, a district justice found him guilty of violating the disorderly conduct statute and imposed a fine and court costs totaling $119.75. Hackbart appealed the decision and on Oct. 17, 2006, the Allegheny County District Attorney’s Office finally decided to withdraw the charges against him, and the sentence was vacated.

Enter the ACLU. They filed a federal civil rights lawsuit against the City of Pittsburgh and Sgt. Elledge on Hackbart's behalf. The complaint alleged, among other things, that the defendants violated Hackbart's rights under the First Amendment "to be free from criminal prosecution or to be retaliated against in any way for engaging in constitutionally protected speech."

He won.

Sara Rose, an ACLU staff attorney, stated that "the law is clear that using one's middle finger to express discontent or frustration is expressive conduct that is protected by the First Amendment. The City has an obligation to train its officers to respect citizens' free-speech rights."

Pittsburgh has tentatively agreed to pay $50,000 ($10,000 to Hackbart, $40,000 to the ACLU and lawyers' fees) to settle his lawsuit. As part of the settlement, the city promised to "train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off," the Pittsburgh Post-Gazette reports.

The Post-Gazette also notes that this latest blow to law enforcement's effort not to have people give them the finger is part of a growing line of such losses. In the most high-profile example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, AZ in 1990 that a man pulled over in Douglas for flipping off and swearing at a police officer did not break the law.

Four Letter 'F' Word Faces Constitutional Challenge After Colorado Arrest

Free Speech is my thing, so this story is a natural for the Broward Law Blog, even though it emerges from a high school in Colorado. This piece, and I have no intent to be offensive, is about a 'Fucking' Motion to Dismiss. Stay till the end and you will find the Broward connection.

Here is the deal. A teenager with a Marlboro ran into a problem with smoking in the boys room of a local school, and he was charged with a crime, a class three misdemeanor, but apparently not for smoking or lighting up.

Instead, the student was faced with the charge of 'interference with staff, faculty, or students of an educational institution' by engaging in a verbal torrent of expletives towards the principal of the school after the incident. He proceeded, in anger, to call out the principal thusly: "you 'fucker,' you 'fucking fag'." Do not know if the student was suspended or expelled but he was criminally prosecuted.

That is where our hero of the day, Colorado Public Defender Eric Vanata comes into the picture. Charged with the responsibility of defending the student on the bogus charge, he writes a sophisticated brief on the historical and routine use of the word 'fuck', and how it is so much a part of the American culture, it cannot be deemed constitutionally offensive, illegal, or prohibited. He does so by tracing the origin of the word, and discussing, in a literate, sardonic, and accurate way, how pervasive the word is in our culture. How it permeates all walks of life, as an adverb, noun, or adjective.

As other bloggers have already picked up on this, I have to steal their line- that there is no way I can do this f-ing justice.

So here it is, the entire Motion to Dismiss the Constitutionality of Fuck, "Fucker" and "Fucking Fag"- in pdf form, from Colorado v. C.L., a Child (Dist. Ct. of Larimer County, Co.)

Johnny Carson once said there is no such thing as an original joke. So here is your Broward County anecdote, with a dedication to the late jurist, Judge John King. I know that both Public Defender Howard Finkelstein and I are old enough to remember him. And years ago there was a motorcylce cop in Fort Lauderdale, the late Charley Bruce, who arrested one of our clients for cursing him out and shouting expletives at him- which was an easy thing to do if you knew Charlie. But this ponytailed young PD named Finkelstein came up with a motion to dismiss the arrest on free speech grounds, and Judge King agreed. I guess Broward is just a few years ahead of Colorado on this one. I will post Howard's motion next week on this blog, thirty years later.

Picking Up Pieces of the Past on a Wednesday Morning

The most important thing for me to do late on a Tuesday nite is to remember to move the garbage cans curbside for Wednesday morning pickup, but in the meantime..

I have joked recently in my blogs about how Bernie Madoff went to Hofstra College, my alma mater, and how weird it is that his class ring from 1960 was auctioned off by federal authorities Saturday in New York City. Never thought a class ring from the Harvard of Hempstead would be worth so much…then I spent yesterday afternoon reading about a Lawrence High School classmate I used to play stickball with at School #6 on Branch Boulevard when we were like ten years old. 40 years ago, in 1968, he was voted most likely to succeed by his classmates. But in 2008 what he succeeding in getting was a 20-year sentence for setting up a $400 million dollar hedge fund fraud, using his law firm as a tool. Hello, Scott Rothstein. Here is the article about Dreier, who also appeared on 60 minutes, about the brazen scam. Greed greed Greed. Kills ya'.

http://www.vanityfair.com/business/features/2009/11/marc-dreier200911

One passage in the article jumps out at me which could be a telling factor:

His epiphany, Dreier remembers, came in the summer of 2003, during a long walk he took on the beach near his vacation home, in Westhampton Beach, New York. He experienced a moment of clarity, he says, in which he saw the path he needed to take; unfortunately, it was a path that would lead to his downfall.

It happened one day when he found himself staring at a palatial beachfront home. His own house was inland. He had always wanted one right on the beach. It was at that moment, Dreier says, that he came to two conclusions. He would buy himself a big house on the beach. And he would get the money by dramatically expanding his firm, now renamed Dreier L.L.P. Dreier knows how ridiculous this sounds, that his criminal behavior can be traced to his yearning for a better beach house.

“I wanted to just, well, appease myself,” he says. “Well, not appease myself. Gratify myself … I was very, very caught up in seeing the criteria of success in terms of professional and financial achievement, which I think was a big part of the problem. But I thought it would make me happy. And I wanted to be happy again.”

Elsewhere, the news for the first amendment in Miami was not grand as the Supreme Court chose not to review the case of the book, Vamos a Cuba, banned by the School Board. I have written about it before, but here is the story on the front page of the Miami Herald:. Definitely my sentiments are with the ACLU and Howard Simon who commented that: ‘What the Supreme Court did was to give the School Board the power to cleanse the library shelves of various books `That sets a dangerous precedent.'’ Yup, it does. By the way, if you have any extra money to donate somewhere here at the end of the year, not that anyone does, the ACLU could use some.

Political correctness in schools, a very unhealthy thing. Speaking of which, it was nice to see Buddy Nevins- on his blog -back off of his totally unjustifiable criticism of Kevin Tynan. A lawyer who represents lawyers, with a passion for integrity and who served the Florida Bar as an Ethics Prosecutor, I think you can expect a new era of honesty on that school board, with a bulldog for fairness serving thereupon. And speaking of books, I have to get to writing a piece on my friend Tom Hayden, who I got to spend the day with in Miami after he lectured at the Miami Book Fair, catching up on politics and our mutual passion for baseball. It is hard to believe he is nearly 70, I am 60, and it has been 40 years since Grant Park and Chicago. Here is a link to Tom's new book, which, unfortunately, though hundreds showed up for his SRO talk, none of his books were shipped for him to sign- ouch;

http://www.paradigmpublishers.com/Books/BookDetail.aspx?productID=215088

Also at the festival, with a line out the door early Saturday morning, and overwhelming popular acclaim, some dude named Al Gore.

I also saw that a top DEA agent I have criticized in a blog about his drug war righteousness may soon be out of legal trouble. Magistrate Robin Rosenbaum has said the charges against him should be dismissed…Noticed also that the driver responsible for reckless driving and the fatal crash on I-95 Monday morning has tickets for careless and reckless driving from earlier this summer. How not surprising… So who is more of a threat to the public safety, that dude or the young San Francisco pitcher, Tim Lincecum, likely to win the Cy Young award again tomorrow for the second year in a row, busted for 3 grams of pot in Northern Washington. Hell, in northern California guys have that much residue in their carpet. Anyway, just did another legalization piece this week online for Counterpunch about how the American Medical Association has altered its stance on the rescheduling of marijuana from a Schedule 1 substance drug with no medical use to a lesser standard. Nice of them to catch up with the rest of the world.http://counterpunch.org/kent11162009.html

Was asked yesterday how I feel about the collapse of the national gay media in local markets with the bankruptcy of the Blade newspaper chain. It means the paper I founded ten years ago this month, and sold to them in 2004, is now extinct. I feel devastated, is how I feel, and I am absolutely sure there needs to be credible GLBT journalism in the South Florida community. Though there was a nice piece in the South Florida Business Journal and the Miami Herald, I posted about it on another one of my blogs: http://www.nationalgaynews.blogspot.com/

Later, and thanks for stopping by.

First Amendment Ruling Allows Protestors at Military Funerals

A federal appeals court in Virginia has thrown out a $5 million verdict against protesters who carried signs with inflammatory messages outside the funeral of a Marine killed in Iraq.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled that the protesters’ speech was protected by the First Amendment.

A Baltimore jury had awarded the Marine’s father, Albert Snyder, damages for emotional distress and invasion of privacy.

The 2006 funeral of Mr. Snyder’s son, Matthew, was among many military funerals that have been picketed by members of Westboro Baptist Church.

Protesters carried signs with messages like “Thank God for Dead Soldiers.” But they were blocks away, and as offensive as they were and are, and continue to be, we must always be reminded that the first amendment IS for those who offend us.

Repugnant, outrageous, despicable, do not adequately describe what I feel they do to these families," said Representative Steve Buyer, an Indiana Republican who is a co-sponsor of a Congressional bill to regulate demonstrations at federal cemeteries. "They have a right to freedom of speech. But someone also has a right to bury a loved one in peace." Of course it is outrageous and despicable, callous and unfair to the grieving.

Here is a NY Times feature on how states respond to the protests:

In the past few months, nine states, including Oklahoma, Wisconsin and Indiana, have approved laws that restrict demonstrations at a funeral or burial. In addition, 23 state legislatures are getting ready to vote on similar bills, and Congress, which has received thousands of e-mail messages on the issue, expects to take up legislation in May dealing with demonstrations at federal cemeteries.

"I haven't seen something like this," said David L. Hudson Jr., research attorney for the First Amendment Center, referring to the number of state legislatures reacting to the protests. "It's just amazing. It's an emotional issue and not something that is going to get a lot of political opposition."

Most of the state bills and laws have been worded carefully to try to avoid concerns over the First Amendment, which guarantees freedom of speech. The laws typically seek to keep demonstrators at a funeral or cemetery 100 to 500 feet from the entrance, depending on the state, and to limit the protests to one hour before and one hour after the funeral.
A few states, including Wisconsin, also seek to bar people from displaying "any visual image that conveys fighting words" within several hundred feet or during the hours of the funeral. The laws or bills do not try to prevent protesters from speaking out.

Constitutional experts say there is some precedent for these kinds of laws. One case in particular, which sought to keep anti-

abortion picketers away from a private home, was upheld by the Supreme Court in 1988.

"A funeral home seems high on the list of places where people legitimately could be or should be protected from unwanted messages," said Michael C. Dorf, a constitutional law professor at Columbia University Law School.

Clearwater Fishing Banner Unfurls First Amendment in Court

Had a Florida bait and tackle shop covered up an offending fish painting with the U.S. flag, it could have avoided additional tickets under the Clearwater municipal sign ordinance, according to an ABA Journal report by columnist Martha Neil, reporting on an update of a new case involving free speech.

But covering the exterior wall mural with the text of the First Amendment of the U.S. Constitution violated Clearwater's sign rules for businesses, a city official told a federal magistrate judge in a hearing today in Tampa, reports the St. Petersburg Times.

During questioning by an American Civil Liberties Union attorney, the city planning director, Michael Delk, said the owner of the Complete Angler shop wouldn't have been ticketed if he had used the flag instead of the First Amendment to cover the fish painting. However, Delk didn't explain the reason for the distinction between the flag and the First Amendment, for ticketing purposes, the newspaper writes.

The ACLU is seeking an injunction on behalf of the shop that would bar Clearwater from citing it again under the sign ordinance until constitutional issues in the case are sorted out.

Magistrate Judge Elizabeth Jenkins, who will make a recommendation at some point to U.S. District Judge James Whittemore about how the injunction request should be handled, expressed frustration to lawyers for both sides about their "level of advocacy," the Times reports. "I just really don't feel that this case has been articulated very well," she told the attorneys.

Owner Herb Quintero and the ACLU contend that the entire sign ordinance should be struck down on constitutional grounds because it is vague and exempts holiday displays, writes the Tampa Tribune.

Attorney Leslie Dougall-Sides, who represented the city at the hearing, conceded that the holiday display exemption might be unconstitutional, the newspaper reports. If so, however, it can be severed so the rest of the sign ordinance remains in effect, she argued.

Earlier coverage:
http://browardlawblog.blogspot.com/search/label/Zoning

City Commissioners Empower Themselves to Sue Critics in Deltona

As one blogger has already written, Democracy took a bullet in Deltona, Florida this past week.

Reacting to online criticism of its elected officials, the city of Deltona, Florida has authorized city employees to file libel lawsuits at taxpayers' expense. On February 16, City commissioners voted 4-3 to pass this resolution:

'The City is to provide reimbursement and expenditures of legal fees to protect both proactively and reactively where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels it is needed..'

Breaking this down, this neanderthal group of commissioners has just enacted a law empowering themselves to spend public funds to become plaintiffs in libel actions if a member of the public criticizes them, if the mayor deems it necessary. What a bunch of spineless wimps. Let them start by coming after me. They have just passed an unconstitutional law trampling on the first amendment and the right to criticize public figures holding public office. How dare they? Fools on a hill, they be. The ultimate act of self-righteous, official arrogance.

Speech that criticizes public officials, whether in letters to the editor, on posters or placards- or editorial cartoons- is a cherished and fundamental value of Americans, even in Deltona. This is a city either with too much time on its hands or a group of commisssioners who are obviously incapable of taking the heat. To quote Harry Truman, then get the hell out of the kitchen. They have no business holding office and should resign at once. They have disgraced themselves and their city.

Here is an article about their assinine (most of the time, asinine is spelled with one 's'. Today, though, the city commission earned both) machinations in the Orlando Sentinel:

http://www.orlandosentinel.com/news/opinion/orl-ed20109feb20,0,1587670.story

Justice Alito "Imagines" John Lennon in Monument Case

Here is a piece from BLT, one of the best legal blogs in the nation which we look to each day for commentary and ideas. This is a piece by Tony Mauro who has had a chance to review the complicated case of Pleasant Grove, relating to monuments on public land. Can't blog on everything, so in this case we will rely on his thoughtful words.

'Last year Chief Justice John Roberts Jr. won praise for quoting Bob Dylan in an opinion (a dissent, actually, in Spring Communications Co. v. APCC Services.) Not to be outdone, apparently, Justice Samuel Alito Jr. today quoted at length from John Lennon.

It came in Alito's major ruling in Pleasant Grove City, Utah v. Summum, which redefined monuments placed on public land -- such as a Ten Commandments monument -- as a form of government speech, rather than private speech that can run afoul of the First Amendment's Establishment Clause. Some briefs had argued that if a memorial was to be regarded as a message conveyed by government, the government ought to be forced to embrace the message through a formal resolution.

In knocking down that argument, Alito, 58, makes the point that public monuments can convey multiple messages, or messages that change over time. The Statue of Liberty, for example, came to New York as a symbol of friendship between France and the United States, Alito said, and only later became viewed as a beacon welcoming immigrants.


Similarly -- and here's where Lennon comes in -- the mosaic in Central Park in New York City that displays the word "Imagine" as part of the memorial to John Lennon conveys several messages. "Some observers may 'imagine' the musical contributions that John Lennon would have made if he had not been killed," Alito said, while others might think of Lennon's song by that name, which imagined "a world without religion, countries, possessions, greed or hunger."


Alito then drops a footnote that offers the full text of Lennon's lyrics to the song "Imagine." The Court's newest justice also makes a number of other Central Park references, including the 1876 controversy over a memorial to Daniel Webster, and a monument to Balto, the sled dog that brought medicine to Alaska during a diptheria epidemic.


If these references have a distinctive New York City flavor, it's no accident. Most of them were mentioned in a brief filed in the case by Michael Cardozo, corporation counsel for the city of New York on behalf of the city, arguing for the government speech approach that Alito adopted.

http://legaltimes.typepad.com/

So was Alioto plagiarizing Cardozo? Does Cardozo care? He won!

Internet Defamation Leading to Blogger Lawsuits

Censorship is Not a Good Thing

It has only been a month but some of you may not remember that this blog got its start as a result of JAABLOG censoring me. Despite having a password to post articles on their site, they foolishly, in my mind, chose to delete, after its publication, an article I had written on the legal liability of bloggers.

JAABLOG, meaning probably Marshall “I paid for this blog” Williams, felt he did not want columns which might in any way inhibit the breadth of their posters’ comments. I felt news is news, and Google being sued by a Vogue model in order to disclose a defamatory poster’s identity was worthy of a blog by a guy who has been doing first amendment law cases for thirty years next month. So I started my own blog, and 'gotta tell you, I'm loving it.

Ironically, the conclusion I reached was that blogs such as JAABLOG would more often than not be protected against litigation, by virtue of the exemptions granted to blog sites under provisions of the Communications Decency Act. Here is the piece I wrote which was censored:
http://browardlawblog.blogspot.com/2009/01/bloggers-have-right-to-anonymity.html


As a member of the First Amendment Lawyers Association, very intrigued by issues of this nature, I carefully track articles on the subject. I recognize they are esoteric and limited in broad interest. However, those as intrigued as I am by these issues are invited to a piece on law.com this morning, written by Jonathan Bick, for the New Jersey Law Journal.

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202427535077

Jonathan Bick is counsel at Wolf Block in Roseland, N.J., and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of "101 Things You Need To Know About Internet Law" .

This is as good an article as you are going to read anywhere on the rights of bloggers, Internet defamation, and the kinds of lawsuits JAABLOG posters may be facing as they trespass routinely on the principles of defamation and slander. The blog may be protected. The posters may not be so lucky.

I wish the jaablogers the best, because I am doing my thing, and it is entirely different than what they do and how they do it. Some of what they cover is cutting edge, nearly first responder type of info. Like this great piece today:

http://jaablog.jaablaw.com/2009/02/26/judge-kaplan-this-is-crap.aspx

You almost think that if there is a heart attack in the courthouse it will be on Jaablog before the stricken party reaches the ER. Just don't have that time, and am more interested in legal commentary then drooling.

The National Blawg Directory pretty much proves there is room in the blawgosphere for thousands of blogs, and no one should be jealous of the other. But as I pointed out in the original article, there are going to be more and more lawsuits for defamation and slander on the Internet. And Jaablog sure invites some comments which push the envelope, so while their posters should never be chilled, they should nevertheless be forewarned.

For myself, I am looking forward to being counsel on one side or the other in the inevitable constitutional litigation that is going to evolve out of blogging our way recklessly through the legal universe.

Norm Kent

Articles Maybe Worth Catching Up On

Stemming Prostitution in LA; A Class for 'Johns'

http://www.latimes.com/news/local/la-me-john-school26-2009feb26,0,6083392.story

Ten Commandments Monument May Stand Alone; Free Speech

http://www.nytimes.com/2009/02/26/washington/26scotus.html?_r=1&th&emc=th

Time For Legalizing Marijuana? CBS News Editorial

http://www.cbsnews.com/stories/2009/02/25/opinion/courtwatch/main4828659.shtml

Jersey Governor Will Sign Medical Marijuana Bill;

14th State to 'Medicalize' Pot

http://www.citypaper.net/blogs/clog/2009/02/25/new-jersey-governor-jon-corzine-says-hell-sign-medical-marijuana-bill/

No Oscars for Medical Marijuana Providers;
Unjust Federal Laws (Written by your publisher)
http://blog.norml.org/2009/02/25/no-oscars-for-medical-marijuana-providers/


Bailed Out Bank Blows Millions On Parties; Northern Trust not so Worthy
http://www.alternet.org/blogs/workplace/128829/

Team Owners Stole Millions from Charities;
More Scams from Corporate America
http://www.nydailynews.com/money/2009/02/25/2009-02-25_two_exislanders_bosses_nabbed_for_steali.html?ref=nl&nltr_ct=1&nltr_id=Two%20ex-Islanders%20bosses%20nabbed%20for%20stealing%20$533M

Court Says Helmsley Dollars Do Not All Go to Dogs
http://www.nytimes.com/2009/02/26/nyregion/26helmsley.html?_r=1&emc=tnt&tntemail0=y

DCF Child Abuse; Talenfeld Wins Again
http://www.dailybusinessreview.com/news.html?news_id=53477

JAABLOG's Listing of New Florida Criminal Justice Bills Legislators Propose
http://jaablog.jaablaw.com/2009/02/26/dre.aspx?ref=rss

Clearwater Sinks First Amendment Banner

Not So Clear Waters

by Norm Kent

Clearwater, on Florida's west coast, a pleasant little town with a seductive name, and a place where the First Amendment is literally up against a wall.

As reported first in the St. Pete Times, and then in the ABA Journal, the 'Complete Angler' thought they could draw some business by displaying a painting of game fish on the exterior wall of their bait and tackle shop. You would think like some of the Whelan paintings of whales, populating walls from Key West to Honolulu, a city might fight it aesthetically appealing and attractive.

Of course, this is Florida. The rules are different here. It seems that the fish painting violates a ban on a business 'displaying a depiction of the product it sells.' This is beyond me. I own a newstand and soft ice cream shop on East Las Olas, next to the Floridian. Should I like go put pictures of naked women on it instead of ice cream cones? Well, it's Las Olas. Maybe naked men instead. Seriously though, can you me imagine advising the owner of the Floridian that he can't paint a picture of a hamburger on his window?

Anyway, I want to meet the owner of the Complete Angler, because when the city compelled him to paint over the fish, he responded with the ultimate act of defiance. He refused to take down the painting. Instead, his shop covered it with a banner providing the text of the First Amendment of the U.S. Constitution.

"As passionate as they are that it's a sign, I'm more passionate that it’s not a sign,'' Quintero said today. Coincidentally, I am dealing with this identical issue right now from a client who has a bar on Andrews Avenue. He had a legal sign, but to market his new eats, he wrapped a canvas around it.

"Down it must come," says code enforcement. It is an illegal banner sign." Sadly, I checked. They are technically correct. I sympathize with Quintero, but he may be on soft legal grounds. Banner signs also need permits, so content notwithstanding the banner has to meet code specs. The St. Petersburg Times wrote about it.

Happily, Quintero has some strong legal company. The American Civil Liberties Union has joined the fray, suing the city in federal court over the alleged First Amendment violations. Howard Simon, their director, comments:

“Only in Florida could a business owner be targeted and fined for displaying artwork; and then in protest of the fine, display the First Amendment to the U.S. Constitution–and then be ticketed for that,”

The city says it is simply enforcing strict rules in a uniform manner regardless of the content of the sign. My prediction is they very well might win, because zoning matters are within their control and rationally based ordinances which protect the public safety are routinely enforceable. But that is to the banner only.

As for restricting the content of the sign, or deeming it illegal for a business to promote its products by restricting what is displayed within the constructs of an otherwise legal sign, well, on that issue, the city goes down. Forget that it is seemingly impermisible content-based regulation for a moment. It is just plain ordinary stupid with a capital S.

The residents of Clearwater need to ask their city commissioners to alter the illogical ordinance which has no reasonable basis for governmental regulation on the one hand, and are counterproductive to the business community on the other.

Earlier coverage:
St. Petersburg Times: "Clearwater tackle shop covers forbidden fish mural with First Amendment"

High Court Denies Purported Anti Gay Free Speech Case

The Supreme Court said Monday that it would not take the case of a Kentucky high school student who wants to sue his school district over a policy that allegedly barred him from expressing opposition to homosexuality. Not even close. Teaching kids respect for fellow human beings does not a constitutional crisis make.

The justices did not comment in denying the appeal of Timothy Morrison, who alleges he was harmed by the policy of the Boyd County Board of Education. Morrison sued the Boyd County school district over a policy that required students to undergo anti-harassment training. He claimed the policy threatened him with punishment for expressing religious beliefs in opposition to homosexuality. Morrison is a professed Christian who believes his religion requires him to speak out against what he sees as behavior that doesn’t comport with his understanding of Christian morality. What has that got to do with harassing someone?

Morrison was never punished under the policy, which was later changed to exempt speech that would normally be protected off campus. So the case may not have had a precise set of facts upon which to deliver a thoughtful ruling. More than just that, a course curriculum designed to teach children how to be more thoughtful to others and not harass their fellow classmates because of their ethnic, sociological or sexual backgrounds does not transparently appear to infringe on another's right to freely practice religion. How is it any different then teaching athletic or mental skill sets?

The school district adopted the policy and established the anti-harassment training as part of a 2004 legal settlement that ended a lawsuit between the school district and a gay-rights group that wanted recognition as an extracurricular group, and were not allowed to meet on campus. Broward County, you may recall, has had the same battles, with religious groups fighting sensitivity training in local schools. What an abuse of alleged religious free speech.

Meanwhile, gay groups yesterday gathered in Fort Lauderdale to commemorate the slaying of a young transsexual on Northwest 6th Street. His mom is in the picture above.

http://www.sun-sentinel.com/community/news/fort_lauderdale/sfl-flbsimmie0223sbfeb23,0,3183923.story

Police have called it a Hate Crime. The killer has not been captured. Maybe if the murderer had been to a school and had this kind of anti harassment training, he would not have been so fast to take another's life for a lifestyle different than his own.

'Let Cartoonists Draw As They Please'

Let Cartoonists Draw

Blogitorial by Norm Kent

A week ago, when a group of African American teenagers were shot up in Miami by a random gang armed with AK 47’s, I was impressed with Al Sharpton showing up in South Florida to condemn the senseless acts of violence and the ‘culture of silence’ which contributed to killers going unidentified. Nice going, Al. I was impressed because you were sticking your head into something useful, which could save lives.

But this week Al Sharpton showed his head again, and regrettably it was not in defense of lost lives. Nope, Al decided to invoke his presence into the growing and unnecessary outrage against a NY Post editorial cartoonist, whose latest drawing was politically incorrect. Sharpton joined the chorus of voices censuring Sean Delonas, who published an editorial cartoon which implicitly compared President Obama with a primate. It evoked a history of racist imagery of blacks. It was not in good taste. So what? Satire does not have to be.

How many times do you have to repeat that the First Amendment is not for voices that agree with us? Jerry Falwell is gone now but he never liked what Al Goldstein did to him in Screw Magazine either. Al was a friend, a client, and understood his job, his duty, his obligation as a porn publisher was to press the envelope. It was easy for him. All things he considered moderate others deemed excessive. For Al, too much of a good thing was not enough. And there were no limits, so much so that he spent many of his thirty years publishing Screw Magazine in court defending it against pornography charges. Thank you, Herald Price Fahringer.

How many of you in college had the incredible poster of all the Disney characters from Minnie and Mickey and Pluto fornicating hanging up in your dorm room? You thought it was funny? I am guessing the late Walt Disney did not.

Not had a lot of dealings with Larry Flynt, but do you remember when Hustler Magazine ran the cartoon parody of Jerry Falwell having sex with his mother in an outhouse, saying he always liked to get ‘sloshed’ and have a little foreplay before delivering his sermons? Jerry, upset as he was with the First Amendment, then had no problem 20 years later censuring a cartoon character named Tinky-Winky for being ‘too gay.’

How many times over the years have I heard people say my client on 560 WQAM, Neil Rogers, has ‘gone over the line?’ No, he never went over the line. But his divine, funny sarcasm made you think about crossing it. That is what a host is supposed to do. That is what editorial cartoonists also do. That is sometimes what an attorney has to do when zealously representing his clients. That is the blessing and breadth of the mother of all amendments, the Amendment we call First.

Publishing this blog, I have made the ‘Editorial Cartoon of the Day’ a daily feature. Paid a subscription fee to acquire them. It is not just because a picture is worth a thousand words. Nothing reflects the cross section and breadth of an American free press more than the satirical reaches of comedic art as expressed in your newspapers. I have been balancing conservative and liberal cartoonists alike, just to create an entertaining daily blog.

Having been a radio host for over a decade, and representing them for three, I learned people do not care so much what you say as how you say it. You can be the greatest liberal or conservative in the world, but if you are not entertaining, your show will fall flat. Ever hear an author give a speech at a book show? Most of the time it is death warmed over.

Spent most of the week thinking how to write about this, then I saw that Scott Greenfield wrote a thoughtful blog this week already on the topic at Simple Justice. He is so right on. Editorial cartoons are satire. This is what Greenfield concludes:

“Obama is fair game. Obama cannot be untouchable. No President can be untouchable. No political commentary should be subject to rules. And who cares what Rev. Al has to say anyway.”

How could we dare think otherwise?

I come to these pages after 30 years of seeing issues like these make the news. A high school student in Illinois named Tinker could not wear an armband. An activist named Abbie Hoffman was not allowed on TV wearing an American Flag shirt as a motif. Comic books were too violent 50 years ago, and now video games are so today.

Spencer Toys sold pornographic Santa Clauses and some high school kid’s project was thrown out of the art show because it depicted Jesus with an erection. Who cares? Our nation has survived wars, floods, hurricanes, tornadoes, natural disaster and man-made calamities, can’t it handle controversial cartoons? Let us protect the expression of ideas as jealously as we are supposed to our natural resources.

I am really over it, debating the first amendment. It is there. Use it. Abuse it. Enjoy it. Step on it. Tread on it. It will still be there, long after you are gone crying about the fact that it did not blow your way. But that is why it was there. It was not made just for you. It was made for the guy you disagree with, and maybe for that day you disagree with all those things ‘They’ are telling you that you have to buy into and believe.

We come together as a society not to restrict the rights of any, but to secure the rights of all. So the next time you see something YOU don’t like, suck it up and say ‘Thank you, America. One day I may choose to be that guy.’

Related Links:
http://cityroom.blogs.nytimes.com/2009/02/18/chimp-stimulus-cartoon-raises-racism-concerns/
http://blog.simplejustice.us/2009/02/22/no-president-is-untouchable.aspx

Video Game Law Struck Down in California

Is there any doubt in your mind that Arnold Schwarzenegger is one of the most popular men in America? That if he were eligible to run for president, he would win in a landslide?

He always impressed me for the ways he went beyond the screen, identifying himself as more than an actor. But I wonder what he has to say about the steroid scandals today. Is there any doubt that he used steroids to become the physical mass of humanity that he became?

So here he is with a bunch of girl scouts, signing into law a bill that the US Court of Appeals for the Ninth Circuit has just declared unconstitutional. It is the video game law which mandated an additional labeling requirement and made it illegal to sell or rent a video game that has been labeled “violent”.

In defending the law, the state argued that violent content should be judged by the same obscenity standards as sex. (For the text of the act, which contains language that tracks the Miller test, see page 5 of the opinion.) Just as the government can prohibit the sale of explicit pornography to minors, state lawyers contended, it should have been allowed to establish an adults-only category of ultra-violent video games.

But a unanimous appellate court ruled that a 1968 U.S. Supreme Court ruling that allowed tighter restrictions on selling explicit materials to minors than to adults applies only to sexual content and not to violence.

“The Supreme Court has carefully limited obscenity to sexual content,” wrote Judge Consuelo Callahan. “We decline the state’s invitation to apply the (same) rationale to materials depicting violence.” Nice of the state to extend the invitation. Nicer of the Courts to protect the first amendment rights of consumers in a free and open society.

We come together as a community not to restrict the rights of any but to secure the rights of all. I wish legislators would meet annually to eliminate laws which are unnecessarily restrictive. Instead they collectively gather only to find new ways to pass more laws which invade the breadth of your freedoms.

'That government which governs least governs best'

Thomas Jefferson

Boston Decision Radically Alters Libel Laws

Robert J. Ambrogi is a Massachusetts lawyer and journalist. He is executive director of the Mass. Newspaper Publishers Association. He publishes the Media Law Blog, and this week sent chills down my spine with a first amendment libel case that can have enormous impact.

Here are his opening words:

"A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech."

Here is the rest of the link:
http://www.legaline.com/2009/02/think-you-know-libel-law-think-again.html

Florida's Supreme Court recently rejected the principle of a 'false light' tort of defamation. It was a close call. It was a big case. So is this one. If you practice in this area, it is a case you need to read.

Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

Porn Tax Dies in Seattle

A proposal to tax adult entertainment products and services to fund unemployment and welfare benefits is dead in Seattle.

The porn tax bill seems to be unconstitutional because it trespasses on other laws simplifying the Washington state tax code. Separately, a tax based on content is just unconstitutional.

One concerned business was not a bar but 'The Erotic Bakery' in Wallingford, WA, which supplies breast-and-penis-shaped cakes, and the like for bachelor and bachelorette parties. They were worried all their products would be taxed, for each organ it displayed on it. Not to worry. The evidence did not stand up to constitutional muster.

Still, the Adult Video News, which picked up this story stumbled upon another proposal for the Washington November state ballot initiative, one Measure No. 1040, which "concerns a supreme ruler of the universe."

This measure would require state government not to use public funds or property for anything that denies or attempts to refute the existence of a supreme ruler of the universe," the initiative's abstract says, "including but not limited to appropriations for displays, textbooks, scientific endeavors, instruction, and research projects. The measure would provide that no person shall be questioned based on their personal values, beliefs, or opinions regarding the existence of a supreme ruler of the universe." So much for science.

Is it a little too wet in Seattle? Everyone's brain becoming damp? Washington has initiatives just like Florida. So now the proponent needs just the signatures of 241,152 more crazy voters to get on the ballot, and there aren't that many stupid people in the state, are there?

Did Indictment Invade Free Speech Rights?

TheSCOTUS Blog, the US Supreme Court, reporting today on either an interesting free speech issue or a crooked politician's last desperate attempt to get back into office. Has to do with Rep. Jefferson and this is what he is arguing:

The petition raises this question: “Whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.”

That Clause, the petition asserts, creates an “absolute privilege” against use of legislative activities as a basis for action against a lawmaker in Congress. The two Supreme Court precedents on grand jury evidence — Costello v. U.S. in 1956 and U.S. v. Calandra in 1974 — should not apply when evidence is derived from protected legislative activity, the petition argues.

Jefferson is set to go on trial May 26 in Alexandria, Va., federal court, on a 16-count indictment. Read the whole story here. First amendment issues are really intriguing. This could be an interesting one.

http://www.scotusblog.com/wp/new-speechdebate-clause-case/

http://en.wikipedia.org/wiki/William_J._Jefferson

Drunk Lawyer Promises to 'Bend Over' Cops

This guy should not have been a lawyer.

You see, a citizen has a right to curse out a cop and call him names, and is statutorily protected from being charged. Not so if you are lawyers. Lawyers have less free speech rights than citizens they defend, we are learning. We have the Bar.

Don't get me wrong. A citizen who calls cops out in the street will still get his ass kicked, but at least you can't be prosecuted for calling a cop a bad name. As a matter of fact, in Broward, some whippersnapper of a young lawyer named Howard Finkelstein got an ordinance like that overturned in 1981 by a late jurist whose name was John King.

According to the ABA Journal's juicy daily reports, a former New Jersey judge, George Kopita has been suspended from his law practice for three months for an incident in which he allegedly told police officers who had arrested him on a drunken driving charge to “get the Vaseline out and bend over." Kopita had the good sense to quit his judicial post, but then wound up copping out to a charge of "threatening a public servant and drunk driving."

The Disciplinary Review Board had recommended only a reprimand on the ground that Korpita’s actions stemmed from his intoxication, but the New Jersey Supreme Court imposed a three-month suspension. No way of knowing whether this lawyer was hammered for the dui or his fighting words, or even a prior act of misconduct.

However, he made the news with his choice comments to the cops, which included such intoxicated overtures as:
(a) “when the cops beat the shit out of a guy, I do the right thing,”... “I'll never take care of cops again,” and (b) “After tonight, I'm done. … Never again, I'm going to stick it up their asses. Get the Vaseline out and bend over."

Heck, in this county we have had former judges pull people over at gunpoint when they did not approve of the left turn another driver was making. But as a non-drinker, I ask you this: When someone is drunk, and looser with their tongue, are they not in fact letting out how they really feel? Should we not rely more on what people say when they are intoxicated for their true feelings then when they are sober and holding back? I would not mind comments on that. N.K.

Amtrak Photo Contestant Arrested Taking Pictures of Amtrak (Really!)

This is an update on month old news, that candidly, your neighborhood blogger knew nothing about, until last week, when watching the Colbert Report we saw this hilarious segment on Feb. 2, 2009.

Check out the video here. It is on top of the page, and it links to a whole new South Florida connection. That next. I defy anyone to tell me that the investigator in the Colbert video does not look like Russell Williams.

When photographer Duane Kerzic first heard about Amtrak's "Picture our Trains" photo contest, he never imagined that Amtrak police at New York's Penn Station would confuse his picture-taking for suspicious activity and arrest him. But they sure did, and guess what? They ARRESTED HIM!

Kerzic was charged with trespassing after refusing to delete the photos of the trains from his camera.

Kerzic, the alleged victim of all this, is not taking this incident lying down. On his blog, he's encouraging people to write to their Mayors, Senators, the CEO of Amtrak, and even the President to help make sure this doesn't happen again. He has also contacted a New York City lawyer who specializes in First Amendment cases and the National Press Photographers Association has also been in contact with him.

Kerzic has also composed a detailed account of his arrest called (really) "Amtrak Police Intentionally Injure My Right Wrist" and he says he'd like criminal charges to be filed against the arresting officer. For more on this incident, go here.

Couldn't happen here, right? Guess what, go to the blog of Carlos Miller, a Miami photojournalist, and capture his plight.

He is a multimedia journalist who was arrested by Miami police after taking photos of them against their wishes, a clear violation, he asserts, of his First Amendment rights. Since that arrest on Feb. 20th, 2007, he has been fighting a lengthy battle against the State of Florida to prove his innocence. Recently, a jury acquitted him of disobeying a police officer and disorderly conduct, but convicted him of resisting arrest without violence. He is now appealing the conviction.

During the sentencing, he alleges,an extremely biased judge "gave me four times the amount of probation the State was seeking because he was angry that I had blogged about my case. Judge Jose L. Fernandez said he was "shocked" by my lack of remorse in this case. But why should I show remorse for crimes I did not commit?"

Click here to read the saga of Carlos Miller.

Rats! Another Sign Ordinance Bites the Dust

On the heels of our article about Nassau County, NY suing the Platinum Strip Club for too sexy a sign on Rockaway Blvd. In Queens, comes a decision today from the New Jersey Supreme Court. It held that a municipality violated free speech rights by banning temporary signs on public streets, including a 10-foot-high inflatable rat at a labor protest.

The unanimous court, in State v. DeAngelo, A-73-07, called a Lawrence Township ordinance -- which prohibited "banners, pennants, streamers ... portable signs, balloons or other inflated signs (except grand opening signs)" -- unduly restrictive of speech and expression.

The ordinance "is content-based, does not fairly advance any governmental interest, and is not narrowly tailored to prevent no more than the exact source of that evil it seeks to remedy," Justice John Wallace Jr. wrote for the court.

In Thursday's ruling, Wallace said DeAngelo's protest was protected by the state and federal constitutions, as to both content and location. He cited U.S. Supreme Court precedents holding that public streets, parks and sidewalks are traditionally public forums that occupy a "special position in terms of First Amendment protection" and that government cannot restrict expressive activity in such venues without a "compelling reason."

There you have it. His decision is in line with the South Carolina ruling cited in our article, granting a strip club in Columbus an injunction against a city’s would be sign ordinance. It is so important to share this here, because in Broward, with its 26 municipalities, overzealous and inexperienced city commissioners frequently attempt comparable restrictions.

Ultimately, they are proven illegal, and taxpayers wind up underwriting enormous legal bills as a result of foolish and partisan political agendas, which circumvent political realities. Then Bob Norman has to expose them in New Times. So when you vote for city commissioners next week try remembering that you are voting for people whose decisions might wind up taking money out of your pockets. Vote thoughtfully, look at the ties they have, the supporters backing them, and the past they bring to the table. Make sure they come with hands reaching out to your community, instead of ones reaching into your pockets.

Our previous article is here:

http://browardlawblog.blogspot.com/2009/02/signs-signs-everywhere-sign.html